Hi, this is Brett Cenkus. Today, I just got back from a mediation. I've got a
client who is in a business dispute, and we had a mediation clause that I drafted
in our original agreement. It's not a business partnership exactly, it was a
merger and acquisition. We sold the business, and my clients - actually there's two
individuals who sold the assets of a business to another, and they're both
working for the business. So it's a type of business partnership, more of an
employer-employee relationship, but you know something I'd probably call
business partnership of sorts. So we have a mediation clause and we were in mediation today.
We did not get the - we did not reach a resolution. And it was frustrating. We
thought we were going to at one point, but the parties were too far apart. And
driving home, I was thinking about that and thinking mediation is an amazing
thing. I've talked a lot about it before. I almost always put it in contracts.
There are a couple contexts in which I won't for a couple reasons, but for the
most part I put it in. Mediation is a quick process. We were there for one day.
My clients paid $1,300 to a mediator and the other side paid $1,300, so it's not
you know free or cheap, but it's relatively inexpensive and it's worth a
shot. And it doesn't often work, okay. But given what comes next, which is
litigation in our case or arbitration if you have an arbitration clause,
mediation is a shot at a quick resolution and it's a fairly amicable,
fairly informal process. But it's still, it's still not really super amicable. So
it got me thinking a little bit. If you are having a problem with a partner
right now, and this is really for business partners who have been in
business together for a while, and have some history, and some of that history is
positive, right - so there's some relationship here and things have worked
well in the past - and it's also for someone who has not spoken to their
partner about the issues recently. We all bury our head and do things in business
partnerships and marriage, you know, you can pick it up and realize, you know, we
haven't had a substantive conversation about the relationship or the
partnership or the marriage or whatever in a while. So it's kind of for that situation.
And no one's lawyered up yet, but it's not working. And you're
starting to kind of complain to people, to your part- life partner or something.
You're just, you're being, you're frustrated. Mediation today reminded me
that what you need to do right now is to email or call your partner and set a time
to meet. Set a time to meet outside the
office. Something not super formal, not super tense, and you got to have the
difficult conversation. You've got to introduce that. It doesn't have to be a
super difficult one in the beginning, you know. You could start off - instead of
"saying I'm really unhappy with you." You could say "how do you think things are
working? Are you happy? Is it working for you? How am i doing?" Right?
However you need to get into that, do it now. Because mediation is a great thing,
but we're already on a train that's heading down the wrong path, and even
though the process was amicable at times, we thought we're gonna get a deal done,
you've got attorneys on each side. It's an acrimonious process, and it's an
us-vs-them thing. We're often in our own room and we're negotiating. There's
multiple people weighing in and they're, you know, and trying hard to get a deal
done. Because litigation is a lose-lose all around. As I told my client today,
it's not their first rodeo, they've been down this path before and I said you know how this
works. If we don't get a deal done today you're gonna, you're gonna be back here
in a year. You're gonna be rode hard and hung up wet is the old saying. It's like,
you're just gonna be worked hard. You're gonna spend time and money to get back
to this point to settle. Something, I mean I heard recently that - I mean someone
told me 90% of cases in Travis County in Texas settle, but I've also heard 99% -
whatever the number is it's a lot - but what happens is the parties...they're in
their own corners, they can't make a deal work. They spend a year fighting, spending
money, coming back to the table - the table they could have been at today. The table
they could have been at a couple months ago before mediation started. Like so if
you're having a business partnership problem now and that hasn't gotten to
the point of litigation and you haven't had a heart-to-heart conversation. do it
now. There's an old proverb: when's the best time to plant a tree? It's 20 years
ago. When's the second-best time? Today And I
love that, but the point is like yeah you should have done it months ago before
you got to the point where it's strained or you're complaining to people. And if
you're thinking that, pretty good chance your partner's thinking that. And it is
possible that your partner's already started down the path of separating in
their minds. And that's you know it would be better if you had done things before
that, but you don't know that. There might be plenty of time to save it. And now,
when it's just the two of you, it's way better than when you get to this point.
It's so much easier and there's so much opportunity to save things. So if you're
having a business partnership problem now, if you haven't had that hard
conversation in a long time, if there was a partnership that worked at some point
in time, if there's some relationship to preserve, make the call now - right now.
Do you have time for lunch tomorrow, for a drink this weekend. Just lay it out
there and open up. And it's so much easier to do before it gets to the point where we
were at today. Sometimes it can't be saved.
Sometimes it's heading there already. Sometimes it's a foregone conclusion. It
doesn't always work, but it's way easier to do it now. Have the difficult
conversation before it's way more difficult to have. If you've got
questions about that, opinion on something you're dealing with or how to
navigate something, reach out to me. Business partnerships can be amazing and
they're worth trying to save if they're worth putting in place in the first
instance, so best success with it.